Tuesday, 31 October 2023

When an employee brings an inappropriate behaviour allegation against a workmate, sometimes it seems everybody suffers.

The process is laborious, the situation emotion-laden, and the penalties harsh. That’s without considering the flow-on effects to the workplace and other team members.

Take the recent Fair Work Commission judgement against CITIC Pacific Mining Management, in which an employee’s dismissal for inappropriate behaviour was overturned after the Commission ruled that the incident investigation was inadequate.

The incident involved inappropriate phone images passed across a young woman by two people sitting close to her during their end-of-shift bus commute. The employer asked the accused for a written response. After one meeting he was stood down. Following a second meeting, further investigation, and a third meeting, his employment was terminated.
This case, like so many workplace behaviour matters, comes down to one person’s version of events versus another’s, even if 12 people are saying they saw it. It takes specialised investigation, and particularly interviewing skills, to be able to assess the reliability and credibility of the testimony. Specialist investigators who have conducted hundreds of such interviews know that body language accounts for 70 per cent of communication. Experts can separate deception from logical, honest recall and moderate their interviews accordingly to elicit facts and contradictions.
Employee misconduct has long been a significant problem in mining and construction, where employees often not just work together, but live, travel, and socialise together as well. Misconduct reporting has skyrocketed since #MeToo and the likes of the Brittany Higgins case in the Australian Parliament. One large mining company experienced an increase of sexual harassment, sexual assault, racism, and gender discrimination cases from 46 per year three years ago to almost 1000 last year.
The impact is massive – not just for the victim, but for everyone involved. The alleged perpetrator and the witnesses can suffer significant stress and even trauma in giving evidence. Tensions rise and productivity falls in the work team during the sometimes-lengthy resolution process, often disrupted severely as people seek transfers or resign. The psycho-social impacts are so significant that large mining and construction companies are now engaging teams of psychologists to deal with the resulting issues.
These concerns are exacerbated further when employees believe the wrong outcome has been decided. For example, when the employer feels it can’t take action because it doesn’t have reliable evidence, or when a dismissal is overturned due to inadequate investigation. The employer finds itself in the position of having to re-employ someone it dismissed, or pay them severance plus legal costs and damages.
The recent CITIC decision stresses the importance of sound, defensible reasons for dismissal, reasonable steps for investigation, and a high standard of proof for guilt.
With so much at stake, professional expert investigation and evidence that can withstand legal scrutiny are required to protect everyone involved, not just the victim. Because there’s right, there’s wrong, and then there’s proving it.